Filed 4/11/18 P. v. Hernandez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS ANTONIO HERNANDEZ,

Defendant and Appellant.
D073281



(Super. Ct. No. INF1403406)

APPEAL from a judgment of the Superior Court of Riverside County, Jeffrey J. Prevost, Judge. Affirmed.
Paul R. Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Luis Antonio Hernandez guilty of continuous sexual abuse of a child (Jane Doe) (§ 288.5) (count 4) and committing a lewd or lascivious act on a second child (Mary Doe) (§ 288, subd. (c)) (count 5). The trial court sentenced Hernandez to an aggregate term of six years and eight months in prison.
On appeal, Hernandez claims that there is insufficient evidence in the record to support the jury's verdict finding him guilty of continuous sexual abuse of a child. Hernandez also claims that the prosecutor committed misconduct during his closing argument by mischaracterizing the evidence presented at trial. We affirm the judgment.
II.
FACTUAL BACKGROUND
A. The People's evidence
1. Jane Doe
Jane Doe is Hernandez's niece. When she was in fifth grade and about nine or ten years old, Jane Doe was watching television at Hernandez's residence during an overnight visit. Hernandez came into the room and asked her whether she had wet the bed. Jane Doe responded that she had not. Hernandez came over to Jane Doe, put his hand under Jane Doe's nightgown, and touched her vaginal area, over her underwear.
Sometime after the bedwetting incident, Jane Doe, together with her mother and brother, moved in with Hernandez's family and numerous other extended family members and friends in Hernandez's home. One day, when she was about ten years old, Jane Doe came home from school and went to her room. Hernandez entered the room, grabbed her by the arm, pushed her against the bed, and began kissing her with an open mouth. Hernandez then put his hand into Jane Doe's pants, and touched her vaginal area over her underwear.
On another occasion, when she was between ten and twelve years old, Hernandez picked up Jane Doe from school in his truck. The two were alone in the truck. Hernandez put his hand on Jane Doe's thigh for, according to Jane Doe, "a few minutes." The touching made Jane Doe feel uncomfortable.
Jane Doe also testified that Hernandez had kissed her on the mouth on more than three occasions.
Jane Doe explained that, at some point, feeling "ashamed of everything that happened" with Hernandez, she began to feel suicidal. She also began cutting herself in an attempt to ease the mental anguish from the molestations. In 2014, Jane Doe disclosed Hernandez's abuse to a school counselor, who notified authorities.
2. Mary Doe
Mary Doe is also Hernandez's niece. On November 27, 2010, when she was approximately 13 or 14, Mary Doe spent the day at a family party. Hernandez offered her a ride home from the party. As they got in his car to leave, Hernandez told Mary Doe that he had to stop at his residence before taking her home.
Hernandez drove the two to his residence. Once he and Mary Doe were inside the residence, Hernandez locked the door and closed the curtains. Hernandez told Mary Doe to sit down, and he sat next to her. Hernandez began to tickle Mary Doe, before forcing her to kiss him on the lips. He then put his hand under her shirt and reached for her breast, but Mary Doe pushed Hernandez's hand away. Hernandez put his hand on Mary Doe's underwear and tried to touch her vagina. Hernandez gestured for Mary Doe to touch his crotch area, and she could see that he had an erection.
Mary Doe said that she had to use the bathroom. After Mary Doe had been in the bathroom for a while, Hernandez began to knock on the bathroom door. As Mary Doe exited the bathroom, Hernandez attempted to kiss her again. Mary Doe shoved Hernandez away and told him that she wanted to go home.
Hernandez drove Mary Doe home. While in the driveway, Hernandez said to her, " 'Don't tell anyone.' " The next day, Mary Doe told two of her friends about the molestation. That same day, the friends told a school counselor. Shortly thereafter, law enforcement officers were notified.
B. Defense evidence
Numerous friends and family members testified on behalf of the defense. Several of these witnesses testified that, while living in the Hernandez residence during the relevant time period, they did not see any inappropriate conduct between Hernandez and Jane Doe. In addition, several female family members and friends who had lived in the Hernandez residence testified that Hernandez had not molested them. Hernandez's wife testified that Jane Doe's mother had told Hernandez's wife that Jane Doe had told her mother that Hernandez had not molested her.
III.
DISCUSSION
A. There is sufficient evidence in the record to support the jury's verdict finding Hernandez guilty of continuous sexual abuse of a child

Hernandez claims that there is insufficient evidence in the record to support the jury's verdict finding him guilty of continuous sexual abuse of a child (§ 288.5).
1. Standard of review
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005) 37 Cal.4th 733, 738–739.)
2. Governing law
Section 288.5 provides in relevant part:
"(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in . . . three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child . . . .

"(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number."

Section 288 provides in relevant part:
"(a) . . . [A]ny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ."

In determining whether a defendant acted with the requisite intent to commit a violation of section 288, " '[t]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.' " (People v. Martinez (1995) 11 Cal.4th 434, 445 (Martinez).) "[R]elevant factors can include . . . other acts of lewd conduct admitted or charged in the case [citations], [and] the relationship of the parties . . . ." (Ibid.)
3. Application
Hernandez raises several arguments in support of his claim that there was not sufficient evidence that he harbored the requisite intent. First, he argues, "[W]ith respect to both the bedwetting incident and the truck seat incident, there was no evidence of an intent by appellant to arouse either Jane Doe or himself." We are unpersuaded.
Because there is rarely direct evidence of a defendant's intent, such intent may be proven by circumstantial evidence. (See, e.g., People v. Mincey (1992) 2 Cal.4th 408, 433.) Thus, in this case, in determining whether Hernandez had the requisite lewd intent when he touched Jane's vaginal area over her underwear during the bedwetting incident, and when he placed his hand on her thigh "for a few minutes" during the truck seat incident, the jury could consider Hernandez's commission of "other acts of lewd conduct" (Martinez, supra, 11 Cal.4th at p. 445) with both Jane Doe and Mary Doe. Specifically, the jury could consider Jane Doe's testimony that Hernandez kissed her on the mouth on more than three occasions. The jury could also consider Jane Doe's testimony that, on one occasion when she was alone with Hernandez in her bedroom, he pushed her against the bed, kissed her on the mouth, and put his hand down her pants and touched her vaginal area, on top of her underwear.
The jury also could have considered the evidence of Hernandez's molestation of Mary Doe. As described in part II, ante, Mary Doe testified that Hernandez took her to his unoccupied residence, locked the door and closed the curtains, and then kissed her, put his hand under her shirt on top of her bra, and attempted to put his hand down her pants. According to Mary Doe, after the assault, Hernandez told Mary Doe not to tell anyone. In light of this conduct, a reasonable jury could infer that Hernandez had the requisite sexual intent to support a section 288 conviction when he touched Jane Doe during the bedwetting and truck incidents.
Hernandez also argues, "With respect to the truck seat incident, [he] drove his truck while shifting its gears, therefore his hand did not remain on Jane's thigh as she testified." Even assuming that Jane Doe was mistaken with respect to the length of time that Hernandez's hand remained on her thigh, "any touching of an underage child is 'lewd or lascivious' within the meaning of section 288 where it is committed for the purpose of sexual arousal." (Martinez, supra, 11 Cal.4th at p. 452, italics added.) It was up to the jury to determine the significance, if any, of this fact in weighing Jane Doe's credibility. (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 403 ["Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends"].)
Finally, Hernandez suggests that the "amorphous" nature of Jane Doe's testimony that he had kissed her on the mouth on more than three occasions, and a purported inconsistency between Jane Doe's trial testimony and her forensic interview concerning the number of times that he kissed her, demonstrates that the jury could not have reasonably relied on evidence that Hernandez had kissed Jane Doe in finding him guilty of the charged offense. We disagree. In light of Jane Doe and Mary Doe's testimony concerning specific instances of molestations, the jury could reasonably find that Jane Doe's generic testimony that Hernandez had kissed her on more than three occasions was also credible. Thus, the jury could reasonably rely on Jane Doe's testimony that Hernandez had kissed her on the mouth on more than three occasions in determining whether he had the requisite intent to commit a lewd act when he touched Jane Doe's vaginal area during the bedwetting incident, when he groped Jane Doe during the bedroom incident, and when he placed his hand on her thigh during the truck incident.
Accordingly, we conclude that there is sufficient evidence in the record to support the jury's verdict finding Hernandez guilty of continuous sexual abuse of a child.
B. Hernandez forfeited his contention that the prosecutor committed prosecutorial error during his closing argument and Hernandez has not demonstrated that defense counsel's failure to object to the prosecutor's argument constitutes ineffective assistance

Hernandez claims that, during closing argument, the prosecutor mischaracterized the evidence presented at trial with respect to the number of times that Hernandez touched Jane Doe's vaginal area. He contends that the prosecutor's remarks constituted prosecutorial error and that his counsel's failure to object to the remarks constitutes ineffective assistance.


1. Factual background
At the outset of the trial, the court instructed the jury as follows:

"Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will discuss the case, but their remarks are not evidence."

As discussed in part II, ante, Jane Doe testified that Hernandez touched her "vagina" on two occasions, once during the bedwetting incident and once while kissing and groping her in her bedroom. The prosecutor asked Jane Doe, "As you sit here today, do you recall him ever touching you on your private area other than those two times?" Jane Doe responded, "No."
After the presentation of evidence, and just prior to closing arguments, the court instructed the jury on the law of the case. Among the instructions was the following: "If there is a disagreement about the testimony and stipulations at trial, you may ask the court reporter's record be read to you by requesting in writing the trial testimony be read to you."
During his closing argument, the prosecutor stated the following:
"Now, [Jane Doe] describes -- as you remember from her testimony, I asked her, how many times did he touch you in your vaginal area? She gives you a number, approximately four times."

The prosecutor also stated, in discussing whether the jury could find Hernandez guilty of the charged offenses, that the jury could find "that those four vaginal touchings occurred."
During closing argument, defense counsel stated that her recollection was that Jane Doe had stated that Hernandez had touched her vaginal area twice:
"So 6th grade is the conduct that [Jane Doe] says that took place in the bedroom. She talked about some other conduct, very generic form. She -- my remembering of the testimony is that she was touched twice down in her vaginal area and kissed approximately three times. But that's my memory of it. The court reporter took down the testimony."

2. Hernandez forfeited his contention that the prosecutor committed prosecutorial error during his closing argument

In People v. Forrest (2017) 7 Cal.App.5th 1074, 1081 (Forrest), the Court of Appeal discussed the well-established law requiring a defendant to preserve a claim of prosecutorial misconduct (i.e., error):
"To preserve a misconduct claim for review on appeal, ' "a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.] The underlying purpose of this requirement is to ' " 'encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .' " ' [Citation.] 'The objection requirement is necessary in criminal cases because a "contrary rule would deprive the People of the opportunity to cure the defect at trial and would 'permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.' " ' [Citation.]"

It is undisputed that Hernandez did not object to the prosecutor's remarks during closing argument. His claim is thus forfeited. (See Forrest, supra, 7 Cal.App.5th at p. 1081.)
3. Hernandez has not demonstrated that defense counsel's failure to object to the prosecutor's argument constitutes ineffective assistance

Hernandez claims that defense counsel's failure to object to the prosecutor's mischaracterization of the evidence pertaining to the number of times Hernandez allegedly touched Jane Doe's vaginal area constitutes ineffective assistance.
a. Governing law
To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient in that it "fell below an objective standard of reasonableness," evaluated "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); accord, People v. Ledesma (1987) 43 Cal.3d 171, 216 (Ledesma).) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Thus, "[w]hen the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' " (People v. Centeno (2014) 60 Cal.4th 659, 675 (Centeno).) " '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one . . . . ' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.' " (Ibid.)
If counsel's performance has been shown to be deficient, the defendant is entitled to relief only if he can also establish that he was prejudiced by counsel's ineffectiveness. (Strickland, supra, 466 U.S. at pp. 691–692; accord, Ledesma, supra, 43 Cal.3d at p. 217.)
b. Application
The prosecutor argued to the jury that Jane Doe stated that Hernandez had touched her " 'vaginal area' " " 'approximately four times.' " Rather than object to this characterization of the evidence, defense counsel apparently elected instead to inform the jury that she recalled the evidence differently, and to remind the jury that the court reporter had recorded the testimony. Further, defense counsel specifically and accurately informed the jury that Jane Doe had testified that Hernandez had touched her vaginal area twice. Moreover, we may presume that defense counsel was aware that the court had instructed the jury that the attorneys' closing arguments were not evidence, and that the jury could request a readback of any testimony. On this record, we conclude that Hernandez has not demonstrated that defense counsel's failure to object to the prosecutor's closing argument constituted ineffective assistance. (See Centeno, supra, 60 Cal.4th at p. 675 [" 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence' "].)
IV.
DISPOSITION
The judgment is affirmed.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.